The Case for Intervening in Bid Protests: It’s Almost Always the Right Call

By Katherine B. Burrows and Eric Valle of PilieroMazza
Originally published May 14, 2024

You’re a federal government contractor who just won a contract award. But, before you pop the champagne, there’s a hiccup: a competitor filed a bid protest challenging your award. “Oh, well,” you think, “the government can surely defend my award; there’s no reason for me to get involved.” Think again. This blog covers why contractors should step in and intervene when a bid protest challenges their awarded contract. It’s not just about safeguarding your contract; it’s also about ensuring you get compensated for your hard work.

In a rare, published opinion[1] granting a motion to intervene, the Court of Federal Claims explains exactly why awardees should almost always intervene in a bid protest:

As many decisions observe, in bid protests, the government and the offerors have distinct interests. Put simply, when the government acts as a market participant—not as the sovereign—its “specific litigation goals” differ from those of offerors. The government wants to defend its procurement processes and receive contractual performance; the offerors want to receive an award and get paid for work.

That difference creates an incentive for the government to make decisions in litigation that are not in the offerors’ best interests. If forced to choose, the government would defend its institutional interest in agency procurement processes instead of the offerors’ business interests. “The government might deny procedural errors that [an offeror] would concede and defend as harmless. Or the government might concede deficiencies in [an offeror’s] proposal that [the offeror] would not admit to.” The possibility of those conflicts should virtually always amount to “a compelling showing that [an offeror’s] interests may not be adequately protected by the government.

(citations omitted). That’s about as simple and straightforward as it gets. As a prospective contractor, you want to intervene to protect your “award and get paid for work” and to make sure the government, which has a different interest, doesn’t engage in a strategy that harms you, e.g., conceding deficiencies in your proposal.

If that wasn’t convincing enough, however, the Court goes further still, highlighting another reason why awardees should almost always intervene:

Litigating a case involves innumerable decisions about what to emphasize and what to downplay, what to defend and what to concede, what to cite and what to omit, and what to include and what to cut. Parties with different interests (e.g., a bidder and a government agency) will make those calls differently, in light of privileged discussions with their own counsel. . . . [But even a] rough, high-level alignment of one litigant with another cannot possibly capture what goes on when parties and their lawyers present their cases. It is, therefore, unrealistic for the Court—an impartial outside adjudicator—to pronounce a party’s litigation decisions good enough to suit a proposed intervenor with different interests, sitting on the sidelines without a full chance to participate.

That is to say, not only are your interests different from those of the government, but an attorney representing you in a protest may well engage in an entirely different strategy than a government attorney on similar issues.

You don’t get to select the attorney who represents the government in a bid protest, but you can select an attorney to represent you, and you should almost always do so to protect your interests, which are different from those of the government.

 

Katherine B. Burrows is a Partner with PilieroMazza. As a government contracts lawyer and litigator, Burrows counsels and represents government contractors in bid protests, requests for equitable adjustment, external investigations, qui tam suits under the False Claims Act, contract claims, including terminations for convenience and default, and disputes between subcontractors and prime contractors. She can be reached at kburrows@pilieromazza.com or 301.664.2292.

Eric Valle is an Associate with PilieroMazza. He focuses his practice on all aspects of doing business with and litigating against the federal government, include bid protests, contract claims and appeals, regulatory compliance, suspension and debarment, False Claims Act litigation, cost accounting, data rights and intellectual property, subcontractor and teaming agreements, and small business issues and size protests. He can be reached at evalle@pilieromazza.com or 202.655.4165.

[1] Superior Optical Labs, Inc. v. United States, No. 24-500C, 2024 WL 1842211 (Fed. Cl. Apr. 26, 2024).